2014 PLP 1310 (YLR)

MUHAMMAD DAUD KHAN, J.--Convict-appellant, namely, Shah Zarin was tried by learned Izafi Zilla Qazi/Additional Sessions Judge-I, Swat, for the murder of Lal Zamin and causing injury to Mst. Amina. The learned trial Court, vide the impugned judgment, dated 13-5-2010, convicted and sentenced the appellant to life imprisonment with fine of Rs. 1,00,000 under section 544-A, Cr.P.C. or in default thereof to suffer six months simple imprisonment. He was further convicted under section 337-F(ii), P.P.C. and sentenced him to 'Daman' amounting to Rs.5000 to be paid to injured P.W.Mst. Amina, however, benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Complainant also filed Criminal Revision No. 111 of 2010 for enhancement of sentence. Since both the criminal appeal and criminal revision have been filed against single judgment, therefore, we intend to dispose of the same through this single judgment.

3. The case of the prosecution is that on 1-5-2007 complainant Gul Zamin lodged a report to police in Khwazakhela, Hospital, to the effect that he had given a bullock to Tamroz P.W.3 for ploughing on which brother of complainant, namely, Bahar was annoyed and had gone to bring back the said bullock from Tamroz. At about 08:00 hours, the complainant forbade him from not doing so, on which the said Bahar along with his sons Sher Zameen, Shah Zameen and Shah Zareen started beating the complainant. On hearing noise, his wife Mst. Amina and son, namely, Lal Zameen came to the spot. No sooner did, Lal Zameen arrived at the spot, he was overpowered by accused Bahar, Shah Zameen and Sher Zameen, while Shah Zareen gave him "Churri" blow due to which he got injured on his back. During the scuffle, wife of complainant also sustained injury on her left hand. The complainant shifted his injured son to the hospital where he succumbed to his injuries. Motive for the occurrence was stated to be dispute over untying and bringing back the bullock, which was given to Tamroz by the deceased. The report of the complainant was recorded in shape of Murasila Ex.PA. Muzakar Shah S.H.O. (P.W.7) after recording report of the complainant, prepared injury sheets and inquest reports of the deceased as well as injured and, thereafter, dispatched them to doctors. Murasilla was sent to Police Station for registration of the case and, as such, case F.I.R. No. 295 dated 1-5-2007 was registered under sections 302/324/34, P.P.C. at Police Station Khwazakhela, District Swat.

4. Dr. Muhammad Ali Jan P.W.4 conducted autopsy on the dead body of the deceased besides examining injured Mst. Amina.

5. After registration of case, investigation was entrusted to Said Rahman S.I. (P.W.10), who on receipt of copy of F.I.R., visited the spot, prepared the site plan Ex.PB at the pointation of complainant. During spot inspection, he secured blood-stained earth from the place of deceased and seized the same vide memo Ex.P.W.5/1. He also took into possession Shalwar and Qamiz of the deceased, vide recovery memo Ex. P.W.5/2. He also recorded statements of the P.Ws. On 4-5-2007, he arrested accused Bahar, Shah Zareen and Sher Zameen and issued their card of arrest Ex. P.W.10/2. During interrogation, the accused Shah Zarin confessed his guilt and his confessional statement was recorded. He further disclosed that the weapon of offence i.e. `Chhuri' was concealed by him in his home, accordingly, at his pointation the weapon of offence i.e. 'Chhuri' discovered and seized the same, vide memo Exh. P.W.5/3. He prepared sketches Exh. P.W.10/4 and Exh. P.W. 10/5. On 7-5-2007, he dispatched the blood-stained earth and blood stained garments along with weapon of offence to F.S.L, Peshawar and result thereof is Ex. P.W.10/13. Since accused Shah Zameen was avoiding his lawful arrest, therefore, warrant under section 204, Cr.P.C. and notices under section 87, Cr.P.C. were issued against him. After completion of investigation, complete challan in case was submitted before the Court against accused Bahar, Sher Zameen and Shah Zareen as well as against absconding accused Shah Zameen under section 512, Cr. P.C.

6. The appellant and his co-accused Bahar and Sher Zameen were charge sheeted by the learned Trial Court to which, they pleaded not guilty and claimed trial. The prosecution produced as many as ten witnesses to prove its case while the accused were examined under section 342, Cr.P.C, wherein they denied the prosecution allegations. However, they were neither to be examined them on oath nor wished to produce evidence in their defence.

7. Learned trial Court while relying on the prosecution evidence including judicial confession made by the convict-appellant, convicted and sentenced the appellant as stated to above, while acquitted accused Bahar and Sher Zameen including the absconding co-accused Shah Zameen, hence, the present appeal as well as Criminal Revision No. 111 of 2010 for the enhancement of sentence.

8. Learned counsel for the appellant-convict argued that the appellant was falsely charged in the case and the confession was obtained through third degree method, which was neither voluntary nor true and the same was also retracted by the appellant in his statement under section 342, Cr.P.C. He argued that there are material contradictions and improvements in the statements of P.Ws., therefore, the story advanced by the prosecution was not established and the same could not be believed. He further contended that the recoveries were planted against the appellant by the police with the connivance of complainant. Lastly, he submitted that the prosecution has miserably failed to prove its case against the accused beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the accused-appellant be acquitted of the charge.

9. Learned A.A.G. appearing on behalf of the State assisted by learned counsel for complainant, on the other hand, contended that the appellant is directly charged in the F.I.R. for a brutal murder and causing injury to an innocent lady which is supported by the confessional statement of appellant coupled with medical evidence, discovery of a 'Chhuri', blood from the place of deceased, blood-stained garments of the deceased and FSL report. They further submitted that the prosecution witnesses were consistent on material particulars; therefore, the conviction is based on proper appreciation of evidence on record, however, submitted that the convict-appellant was not deserved for any leniency; therefore, his sentence may be enhanced to death.

10. We have carefully perused the record, in the light of above submissions and relevant law.

11. The record reveals that ocular testimony has been offered by complainant Gul Zamen (P.W-1), the father of deceased and Mst. Amina (P.W.2), the mother of deceased. The testimony of both the eyewitnesses corroborated each other on all material points. They were subjected to lengthy and searching cross-examination by defence, but nothing material could be extracted from them, which could create any dent in the prosecution case. Their presence on the spot has also been established because one of them, namely, Mst. Amina, having the stamp of injury on her person. Admittedly, P.W.1 is father and P.W.2 is mother of the deceased but it is evident from the record that they have got no previous enmity or malice with the appellant, in absence of which, they cannot be labeled as interested witnesses. Their interest may be to this extent that to get the real culprits punished for the murder of their son but one cannot expect from them to involve innocent person instead of the real assailant. Their interest to prosecute the actual culprit is natural; hence, they cannot be disbelieved. The contention of learned counsel for appellant that the witnesses are father and mother of the deceased and their testimony is unbelievable has no force because there is nothing on file to suggest that the P.Ws. were having malice or to falsely implicate the appellant and mere relationship of a witness with the deceased is not sufficient to discard the evidence of such witnesses. Reliance is placed on the cases titled Sharafat Ali v. The State (1999 SCMR 329) and Mulla Riaz Ahmed v. The State (2002 SCMR 626).

12. The ocular testimony has also been corroborated by the judicial confession of the appellant recorded by Haya-ud-Din Khan, Illaqa Qazi (P.W.6). Learned Judicial Magistrate stated before the trial court that he has complied with legal formalities while recording confessional statement and when he was satisfied that the appellant wants to record his confession voluntarily, without any duress then he recorded his confession. No doubt, the appellant retracted from his confession in his statement recorded under section 342 Cr.P.C. but mere retraction by the accused from his confessional statement, by itself, is not sufficient to affect its validity because it has now been settled that conviction can be based on confes.sion alone even though retracted, if the same is found to be true and voluntary. Reliance can be placed on the case titled Muhammad Ismail and another v. The State (1995 SCMR 1615) and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988).

13. Besides the above, the story of prosecution and confessional statement of the appellant is further corroborated by the medical evidence. Dr. Muhammad Ali Jan, Medical Officer, Civil Hospital Khwazakhela (P.W.4), who conducted autopsy on the dead body of deceased and also examined the injured P.W. Mst. Amina stated in his statement that he found a sharp wound about 2" in length between the 8th, 9th ribs on right lateral chest, fracturing the 9th rib and damaged the vital vessels, probably the pulmonary vein, according to his opinion, the cause of death was excessive bleeding from vital vessels, the hypo volumnic shock. He also found a simple sharp wound about 1-1/2" in length on left forearm on the person of injured P.W. Mst. Amina. He declared the weapon of offence as sharp. The defence failed to shatter the testimony of this P.W. The ocular account and confessional statement are in consonance with the medical evidence, which is further corroborated by the recovery of blood stained articles and positive FSL report.

14. The story of prosecution is also corroborated by the discovery/recovery of "churl", the weapon of offence, which is an admission under Article 40 of the Qanun-e-Shahadat Order, 1984 because the place, where the appellant concealed the same, was in his exclusive knowledge. Motive advanced by the prosecution has also been corroborated by the statement of Tamroz (P.W.3).

15. Therefore, taking into consideration all the above facts and circumstances of the case, we are persuaded to hold that the conclusions drawn by the Court below regarding the guilt of appellant Shah Zarin in the commission of offence is based on sound and cogent reasoning and, as such, the same is maintained. Accordingly Appeal bearing No. 506 of 2010 is dismissed. 16 As far as criminal revision for enhancement of sentence is concerned, admittedly, there was no previous enmity between the parties and the available record reveals that the occurrence took place at the spur of moment. There were circumstances which could be taken as extenuating/ mitigating circumstances for the purpose of awarding lesser sentence and the learned trial Court has rightly attended to them while imposing the quantum of sentence. By now it is well-recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. Therefore, the criminal revision is also dismissed.

17. Before parting with this judgment, it is pertinent to mention here that one of the accused, namely, Shah Zameen has neither been appeared before the Police, nor Court and remained fugitive from law up till now but the learned trial Court recorded his acquittal along with the accused facing trial, without any legal justification. True that the law as contained in section 366, Cr.P.C. may not invalidate a judgment delivered by any criminal Court by reasons only in the absence of any party but since an absconding accused is considered to be deserter from the process of law as well as Courts, therefore, would lose some of his normal rights granted to him by procedural as well as substantive law. In the present case, admittedly, Shah Zameen has neither joined the investigation nor made appearance before the Court. Proceedings as provided under sections 87 and 88, Cr.P.C. including warrant under section 204, Cr.P.C. have been issued against him. If the policy of delivering judgments in the cases, like the one in hand, is permitted, it will not only divest the Investigating Agency from interrogation of the accused leaving culprits to go scot-free but would also encourage culprits to abscond from the command of law and Courts. The procedure for such an accused is that when he absconded from the process of law, he is to be declared proclaimed offender and if any evidence is recorded in his absentia the said evidence in case if during subsequent trial witnesses are not available or due to certain reason their evidence cannot be procured, then the earlier evidence recorded under section 512, Cr.P.C. can be used against him. Besides the above, neither the complainant nor the State counsel were heard by the trial Court in this case against the absconding accused, therefore, judicial discretion cannot be exercised in favour of a person who is fugitive from law, particularly, when proceedings under sections 204 and 87, Cr.P.C., have been carried out against him. Therefore, it can safely be said that the trial Court in the instant case violated the relevant procedure while acquitting the absconding co-accused in absentia. Now the question for decision is that whether the impugned judgment can be set aside to the extent of absconding accused Shah Zameen, when no appeal has been filed against the acquittal of absconding accused. To solve the question, recourse may be sought from section 561-A of Cr.P.C. which is reproduced as under:-- "561 A. Saving of inherent power of High Court

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. " A look at the above section would suggest that if an abuse of process of Court by any subordinate Court is found or otherwise an order by the High Court is required to secure the ends of justice, the inherent powers under this section are available to the High Court to undo the wrong. Here in this case, an illegal exercise of jurisdiction is found to have been committed by the trial Court while acquitting the absconding co-accused, therefore, we, by exercising inherent powers available to this Court under section 561-A, Cr.P.C., set aside the impugned judgment to the extent of absconding co-accused Shah Zemeen and send the case back to the trial Court with the direction to reconsider the case against the absconding co-accused in accordance with law. MH/676/P Order accordingly.